State ex rel. Harris v. Rubino (Slip Opinion), 119 N.E.3d 1238

Background

Petitioners (initiative committee) circulated an initiative to amend Solon’s zoning map to create the Kerem Lake Mixed‑Use District and filed the circulated petition with Solon Director of Finance Matt Rubino on July 12, 2018.
Under R.C. 731.28, the city auditor (here, the finance director) must hold a petition 10 days, transmit it to the board of elections for signature verification, receive the board’s certification, then certify sufficiency/validity to the board so the measure can be placed on the next general election occurring more than 90 days after that certification.
Rubino transmitted the petition to the board on July 23; the board certified 870 valid signatures on July 30 and returned the petition to the city on July 31. The deadline to certify for the November 6, 2018 ballot was August 8, 2018 at 4 p.m.
Solon City Charter Article XIV (added by 1988 amendment) addresses zoning changes proposed by initiative petitions and requires that such ordinances not become effective until submitted to electorate at a regularly scheduled election occurring more than 90 days after “passage thereof”; the city interpreted the charter to require council to pass a certification ordinance after three readings.
City council read the proposed certification ordinance by title once on August 6 but did not adopt it (it declined to adopt emergency language to waive three readings). Petitioners sought a writ of mandamus to compel Rubino (or, alternatively, council) to certify the petition to the Cuyahoga County Board of Elections for placement on the November 2018 ballot; they also sought costs and attorney fees under R.C. 733.61.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Solon Charter Article XIV clearly and expressly conflicts with R.C. 731.28 so as to displace the statute	Charter does not govern the certification step; R.C. 731.28 controls and requires the auditor (Rubino) to certify sufficiency/validity to the board	Article XIV governs zoning initiatives; council must enact an ordinance (after three readings unless emergency) to submit the measure to the voters	Charter does not clearly and expressly conflict with R.C. 731.28; statute governs the certification step
Whether Rubino had a clear legal duty to certify the petition to the board by Aug 8, 2018	Yes — under R.C. 731.28 Rubino (as auditor) abused his discretion by failing to certify after board returned verification	No — certification is a council function under the charter and council could follow its reading rules	Rubino abused his discretion by failing to certify; court ordered him to certify the petition to the board for the Nov 2018 ballot
Whether the court must decide constitutional challenges to Article XIV (ward‑veto, two‑vote issues)	Petitioners also argued Article XIV violates Article II, §1f and certain charter provisions are unconstitutional	City defended charter’s provisions	Court declined to reach constitutional challenges or grant broader declaratory/injunctive relief because it held the charter provision at issue was inapplicable to the certification step
Entitlement to costs and attorney fees under R.C. 733.61 and security for costs	Petitioners asked for waiver of security and for costs/fees if successful	City opposed fees and sought security requirement	Court waived security, awarded costs and reasonable attorney fees (amount to be determined), but denied writ as to other respondents/city council

Key Cases Cited

State ex rel. Ditmars v. McSweeney, 94 Ohio St.3d 472, 764 N.E.2d 971 (2002) (statutory initiative procedure yields to charter only where charter clearly and expressly conflicts)
State ex rel. Commt. for Charter Amendment Petition v. Maple Heights, 140 Ohio St.3d 334, 18 N.E.3d 426 (2014) (court may waive security and award attorney fees in statutory taxpayer mandamus actions)
State ex rel. Bardo v. Lyndhurst, 37 Ohio St.3d 106, 524 N.E.2d 447 (1988) (charter must clearly and expressly show intent to supersede statute to prevail)
State ex rel. Sinay v. Sodders, 80 Ohio St.3d 224, 685 N.E.2d 754 (1997) (auditor has limited discretionary authority under R.C. 731.28 to certify initiative petitions)
State ex rel. N. Main St. Coalition v. Webb, 106 Ohio St.3d 437, 835 N.E.2d 1222 (2005) (mandamus proper to correct public official’s abuse of discretion concerning initiative process)
State ex rel. Nimon v. Springdale, 6 Ohio St.2d 1, 215 N.E.2d 592 (1966) (where charter is silent on certain matters, statutory provisions control)
State ex rel. King v. Portsmouth, 27 Ohio St.3d 1, 497 N.E.2d 1126 (1986) (initiative provisions should be liberally construed in favor of the reserved power of the people)
State ex rel. Commt. for Proposed Ordinance... v. Lakewood, 100 Ohio St.3d 252, 798 N.E.2d 362 (2003) (council not necessarily under duty to accelerate action on initiatives when charter permits its schedule)
Hackley v. Edmonds, 150 Ohio St. 203, 80 N.E.2d 769 (1948) (broad home‑rule powers reserved to municipalities)
Buckeye Community Hope Found. v. Cuyahoga Falls, 81 Ohio St.3d 559, 692 N.E.2d 997 (1998) (charter referendum provisions need not track state law)